State v. Stahlhuth

• Decision Date: 14 November 1944
• Docket Number: No. 26660.,26660.
• Citation: 183 S.W.2d 384
• Parties: STATE ex rel. EVANS v. STAHLHUTH, Probate Judge.
• Court: Missouri Court of Appeals

183 S.W.2d 384

STATE ex rel. EVANS v. STAHLHUTH, Probate Judge.

No. 26660.

St. Louis Court of Appeals. Missouri.

November 14, 1944.

"Not to be reported in State Reports."

Original proceeding by the State of Missouri, at the relation of Francis W. Evans, against Walter F. Stahlhuth, Judge of the Probate Court of the County of St. Louis, Clayton, Mo., for a writ of mandamus to compel respondent judge to appoint relator executor of the estate of William Rippe, deceased.

Alternative writ heretofore issued quashed, and permanent writ denied.

William L. Berthold and Wm. J. Becker, both of Clayton, for relator.

E. McD. Stevens, of Clayton, for respondent.

HUGHES, Presiding Judge.

This is an original proceeding in mandamus wherein relator seeks to compel the respondent, Hon. Walter F. Stahlhuth, Judge of Probate of St. Louis County, to appoint him executor of the estate of William Rippe, deceased.

An alternative writ of mandamus was issued and in due time respondent filed his return thereto. Relator has now filed demurrer to the return, and the cause has been submitted on the petition for the writ (which has been treated as being incorporated in the alternative writ), the respondent's return, and the relator's demurrer thereto.

The petition sets forth that William Rippe, a citizen and resident of St. Louis County, Missouri, died at Pocahontas, Arkansas, on February 20, 1944; the admission to probate of his will in the Probate Court of St. Louis County on February 25, 1944, in which will relator is named as executor; that relator is a citizen of St. Louis County, Missouri, and is not a judge or clerk of any probate court, or a deputy, and that he is over twenty-one years of age and of sound mind; that on February 25, 1944, relator made formal application to the respondent, as Judge of Probate, for the issuance and granting to him of letters testamentary; that on April 4, 1944, respondent refused relator's application and appointed another. The petition alleges that relator's right to act as executor is legal and absolute, and that the legal duty of respondent to appoint relator executor is purely ministerial.

The return is as follows:

"Comes now respondent in the above entitled cause, and for his return to the alternative writ of mandamus issued herein, states:

"1. That he is the duly elected, qualified and acting Probate Judge of the Probate Court of St. Louis County, Missouri.

"2. That one William Rippe died in Pocahontas, Arkansas, on or about February 20, 1944; that on said date, said William Rippe was a citizen and resident of St. Louis County, Missouri, and that all of the property, both real and personal, of said Rippe was located in the City of St. Louis and County of St. Louis, State of Missouri, at the time of his death. That at the time of the death of William Rippe, he was a person of unsound mind and incapable of handling his own affairs, and his person and estate was in charge of Orval C. Sutter, Public Administrator of St. Louis County, Missouri, who had been in 1941, duly legally and regularly appointed as Guardian and Curator of William Rippe, now deceased; that respondent found that William Rippe was so far disordered in mind as to endanger his person and the person and property of others, that he be confined in his person by his guardian in the Shaver Memorial Home, where he was confined from December 1941 to May 21, 1943; that said William Rippe during his lifetime, inherited a large estate from his sister, Caroline Rippe, who predeceased him, and who was also of unsound mind, and who had been adjudged incompetent to handle her own affairs, and whose person and property at the time of her death, was under care and control of Orval C. Sutter, Public Administrator, who had been duly appointed by respondent as her guardian and curator.

"3. Respondent further states that relator herein, during the lifetime of William Rippe, filed a claim against the guardianship estate of said Rippe in the sum of $5391.00, which claim was disallowed by respondent upon trial thereof, and the same was duly appealed to the Circuit Court of St. Louis County, and is now pending for final adjudication therein, and said claim has been at all times defended by Orval C. Sutter, as guardian of the person and estate of William Rippe, a person of unsound mind, and is now being defended by said Sutter, as Administrator c. t. a. of said Rippe Estate.

"4. That said relator, Francis W. Evans, also filed a claim against the Carolina Rippe, deceased, Estate, which was disallowed by respondent, and the same was appealed to the Circuit Court of St. Louis County, the cause has been tried therein, and the same has been allowed in the sum of $1078.00. That said claim was defended by Orval C. Sutter, as guardian of the person and estate of William Rippe, deceased, who at said time was the only party in interest in the estate of Caroline Rippe, deceased, and that respondent is advised by said guardian, that an appeal will be taken from the judgment against Caroline Rippe Estate, to the St. Louis Court of Appeals.

"5. Respondent further states that relator has been at all times represented in the prosecution of said claim, by Honorable William Berthold, attorney at law of Clayton, Missouri, who is acting as attorney for relator in this proceeding, and who appeared in respondent's Court when relator made application for the issuance of letters testamentary, and said attorney was assisted by Honorable William Becker in the trial of relator's claim in the Circuit Court.

"6. Respondent further states that while said William Rippe was a ward of the Probate Court of St. Louis County, and while he was confined in the sanitorium under order of the Probate Court of St. Louis County, he was kidnapped by one Mary Welday, an adventuress, who had been married at least twelve times, and surreptitiously removed by Mary Welday on or about May 21, 1943 to the State of Arkansas, and out of the jurisdiction of the Probate Court of St. Louis County, Missouri, and while said William Rippe was wholly void of any mentality of any kind, character or description, sufficient to either change his domicile or enter into a valid contract of marriage, said Mary Welday claims to have married said William Rippe at Pocahontus, Arkansas on May 22, 1943.

"7. Respondent further states that he ordered and directed the guardian of William Rippe, to bring proceedings in the Courts of Arkansas, for the purpose of protecting William Rippe from said adventuress, and that while said proceedings were pending, said William Rippe died, and that since the death of William Rippe, said Mary Welday has caused to be filed in the Recorder's Office of St. Louis County, Missouri, an authenticated copy of the will purported to have been signed on November 15, 1943 by William Rippe, by his mark, in which he devised all his property to his wife, Mary Welday Rippe, and appointed her as Executrix therein. That said will has been filed and probated in the Probate Court of Randolph County, Arkansas, although no effort has been made to probate the same in St. Louis County, Missouri, where substantially all of said William Rippe's property was located, and where William Rippe actually was domiciled at the time of his death.

"8. That during the litigation brought by the Public Administrator of St. Louis County, as guardian of William Rippe, deceased in the State of Arkansas, the Chancellor of the 8th Chancellery District of Arkansas appointed one Dr. R. E. Rowland, a physician and noted psychiatrist in Arkansas, to make mental examination of William Rippe, and he examined William Rippe, accompanied by the Court Reporter on July 30, 1943. Said Dr. Rowland reported to the Court that William Rippe, now deceased, has no mind to examine; that he was a dementia, void of any mentality of any kind whatsoever; that he did not know where he was or anything about his surroundings; that he thought he was back in St. Louis; that he thought Mary Welday was his sister, and called her Suzanna Augusta; that he had no idea of his marriage or any conception of it and no mind sufficient to form an idea about it. That said examination was made just a few days over a month from the date of the purported marriage, and that the condition of his mind and mental faculties were about the same as on the date of the purported marriage. Respondent is informed by the heirs of William Rippe, deceased, that appropriate action will be taken to contest said purported will, and to set aside said purported marriage to Mary Welday.

"9. Respondent further states that a purported will, dated the 15th day of July, 1938, has been filed in the Probate Court of St. Louis County, wherein relator was given property at 5941 Romaine Place, St. Louis County, and wherein relator was named executor; that relator on the 25th day of February, 1944, made formal application to respondent, as Judge of the Probate Court of St. Louis County, for the issuance and granting of letters testamentary under the appointment in said will, as set forth in the petition filed herein, but respondent denies that relator's right to act as executor of the Estate of William Rippe, deceased, is an absolute right, and petitioner states that it has been shown to the satisfaction of respondent, that the interests of relator are adverse to the interest of the Estate of William Rippe, because of the claims that have been filed by relator against William Rippe, non compos mentis, Estate, and against said Caroline Rippe, deceased, Estate, and, therefore, petitioner is of the belief, and so found as a matter of fact, that relator was not a competent and suitable person to execute said will, and ordered, adjudged and decreed that the application of Francis W. Evans for letters testamentary under the will of said decedent, should be denied, and respondent appointed Orval C. Sutter, Public Administrator of St. Louis County, Administrator cum testamento annexio of...